Tagged: Unfair Competition

On December 5, 2014, an 11-person jury decided in favor of defendants AstraZeneca PLC and Ranbaxy Laboratories, Inc. in the first pay-for-delay class action trial since the United States Supreme Court in FTC v. Actavis, Inc. opened the door on antitrust suits based on patent settlements. Teva Pharmaceutical Industries, Ltd. was also defending the suit before reaching a settlement shortly before the trial ended. United States District Court Judge William Young of the District of Massachusetts last year permitted certification for the class members, including union health plans and insurance companies, based on an alleged injury of supracompetitive prices for AstraZeneca’s brand name heartburn drug, Nexium®.

We have previously posted on proposed federal and state legislation aimed at addressing the toll of “patent troll” litigation by non-practicing entities (“NPEs”) on the U.S. economy. Additionally, a recent Federal Circuit ruling relaxing the standard for finding “an exceptional case” to justify attorneys’ fees in patent infringement actions also appears to have been motivated by need to address NPE litigation. Now the United States trade commissions want to enter the fray. The U.S. International Trade Commission (ITC), through its recent decision In the matter of Certain Optical Disc Drives, Components Thereof, and Products Containing the Same, limited the ability of licensing entities, whose patent-related activities are purely revenue driven, to bring actions under 19 U.S.C. § 1337(a)(3). Additionally, the U.S. Federal Trade Commission (FTC) has recently been given approval to conduct a study on NPEs to examine how they operate and to what extent they affect competition and innovation.

In Powder River Basin Resource Council v. Wyoming Oil and Gas Conservation Commission, 2014 WY 37 (2014), the Wyoming Supreme Court recently held that state district courts receiving appeals of denied record requests must independently determine whether the information must be disclosed or not, rather than merely reviewing the determination of the Commission as an administrative decision. Further, when determining whether the disclosed chemicals qualify as trade secrets protected under the Wyoming Public Records Act (WPRA), Wyo. Stat. Ann. § 16-4-203, the Wyoming high court held that district courts must apply the more narrow definition of what constitutes a trade secret under the Freedom of Information Act (FOIA) as developed through federal case law when determining if the chemical formulations used in fracking qualify as trade secrets protected under the Wyoming Public Records Act (WPRA), Wyo. Stat. Ann. § 16-4-203.

As the so-called pay for-delay case is ripening for Supreme Court oral argument on March 25, 2013, on Tuesday a bi-partisan group of senators introduced legislation meant to strongly deter such arrangements. The introduction of the bill, known as the “Preserve Access to Affordable Generics Act,” follows an annual FTC report disclosing 40 potential pay-for-delay deals struck in the 2012 fiscal year — a jump from 28 such deals in 2011. The goal of the bill is “to prohibit brand name drug companies from compensating generic drug companies to delay the entry of a generic drug into the market.” Such reverse payments (payments made by branded pharmaceutical patent holders to generic challengers to postpone market entry) are considered lawful by some, and anti-competitive by others, including the FTC.

On January 7, 2013, Cincinnati Reds second baseman, and three-time Gold Glove Award-winner, Brandon Phillips, moved to dismiss Rawlings Sporting Goods Co. Inc.’s (“Rawlings”) trademark infringement action arising from his use of a glove with gold-colored features. Rawlings is the company that grants baseball players the RAWLINGS GOLD GLOVE AWARD®, which consists of a gold-colored baseball glove attached to a solid base, dating back to 1957. Players who win the award are also given a functional baseball glove that has a metallic gold indicia on it. Last summer, Rawlings sued Phillips and Wilson Sporting Goods Company (“Wilson”) in the Eastern District of Missouri alleging that Wilson’s manufacture of, and Phillips’ use of, a baseball glove with metallic gold-colored webbing, web stitching and lettering infringe Rawlings’ rights in and to its GOLD GLOVE trademarks and the trade dress in its functional glove.

The International Trade Commission (the “ITC”) recently issued its opinion in Certain Lighting Control Devices Including Dimmer Switches and Parts Thereof (IV), Inv. No. 337-TA-776. The ITC opinion addressed whether the complainant had established the facts necessary for a finding of circumvention of a Limited Exclusion Order to justify the issuance of a General Exclusion Order. The ITC ultimately issued the General Exclusion Order sought by the complainant, disagreeing with the findings of the Administrative Law Judge and the recommendation of the Commission Investigative Staff.

In a recent “not for publication” Memorandum Opinion and Order relating to Reckitt Benckiser’s (“RB”) over-the-counter cough syrup, Delsym® (dextromethorphan polistirex), United States Magistrate Judge Douglas E. Arpert of the District of New Jersey found that RB failed to establish trade secret misappropriation, unfair competition, and tortious interference with business expectations claimed against Tris Pharma, following a four-day bench trial.

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